Magpul 1224 Veto

Jonathan M. Anderson

Phone (303) 295-8566
Fax (303) 672-6508
jmanderson@hollandhart.com

March 15, 2013

The Honorable John Hickenlooper
136 State Capitol
Denver, CO 80203

Re: Colorado House Bill 13-1224

Governor Hickenlooper:

On behalf of our client, Magpul Industries, Holland & Hart LLP urges your veto of
Colorado House Bill 13-1224 based on legal and enforcement deficiencies set forth in this letter.

As you know, Magpul strongly opposes HB 1224. In public testimony, as well as in a
meeting with you and your staff, Magpul communicated its position that HB 1224 will not
enhance public safety, will restrict law-abiding citizens from defending their homes and families,
will cause hundreds of jobs to leave Colorado, and will pull millions of dollars from the state
economy. Magpul believes that this law should be vetoed on policy grounds alone, but
understands that you disagree with its position.

Beyond the public policy deliberations related to HB 1224, there are significant legal
defects and enforcement issues surrounding HB 1224. These issues were not resolved through
the legislative process and, under the state constitution, it is the responsibility of the Governor,
"who shall take care that the laws be faithfully executed," to address the significant legal defects
of HB 1224. (Colorado Constitution Article IV, Section 2).

Our legal analysis concludes that HB 1224:

1) HB 1224 restricts the sale, possession, inheritance, and transfer of all firearm
magazines rendering the bill unconstitutionally vague;

2) HB 1224 bans the possession, sale and transfer of certain existing firearms; and

3) HB 1224 will be virtually impossible to implement and enforce.

Given these structural flaws, which are detailed below, Magpul respectfully asks that you
veto HB 1224.

Holland & Hart llp Attorneys at Law

Phone (303) 295-8000 Fax (303) 295-8261 www.hollandhart.com

555 17th Street Suite 3200 Denver, Colorado 80202-3979 Mailing Address P.O. Box 8749 Denver, Colorado 80201-8749

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Holland &harx

Holland &hart

Governor Hickenlooper
March 15, 2013
Page 2 of 5

I. HB-1224, As Written, Bans All Magazines

While it may not have been the intent of the bill drafters, the plain meaning of HB 1224
is that it will prohibit almost every ammunition magazine as of July 1, 2013. The bill defines
restricted magazines as any that that are "designed to be readily converted" to accept more than
fifteen rounds. The simple fact is that virtually every magazine on the market has an open floor
plate, and that design makes every magazine readily convertible.

A. Magazine Design - Virtually every ammunition magazine that is commercially
available has a removable floor plate. This design feature is necessary for
cleaning, maintenance, and ease of manufacturing assembly. This design also
inherently creates the possibility that all magazines can be extended through
commercially available extension products or readily fabricated extensions. As a
result, nearly every magazine can be converted to exceed the capacity limit set by
HB 1224, including those for many bolt action hunting rifles and common
handguns.

B. Standard Extensions - A basic product search via the internet demonstrates that
virtually every magazine-fed firearm on the market has one or more commercially
available extensions. These extensions are offered by the firearm manufacturer
and by many aftermarket suppliers. In fact, the most popular home defense
firearms come with an option to add an OEM magazine capacity extension,
demonstrating that they are "designed to be readily converted." The bill's
sponsor, Rhonda Fields, conceded in an interview with 9News that the extension
issue was not considered while drafting the bill.

C. Shotgun Shell Amendment - HB 1224 in its earlier form prohibited the sale and
possession of any device "capable of accepting more than 8 shotgun shells." The
Colorado Senate acknowledged that this provision created a legal conflict because
every shotgun, by its inherent design, includes an ammunition source tube that
can be expanded through commercially available extensions. To address this
conflict, the Senate adopted an amendment on second reading that simply
prohibits shotgun shell tubes that extend beyond a specific length. HB 1224's
magazine capacity restriction contains the identical conflict, but was not
addressed by amendment.

D. Unconstitutionally Vague - HB 1224, as written, will require persons located in
Colorado to determine whether a firearm magazine they are about to possess, sell,
or transfer "is designed to be readily converted." This criminal standard would
require a person located in Colorado to predict the intent of the manufacturer's
design of that magazine: if the manufacturer intended to design the magazine to

HOLLAND &HART... ^

March 15, 2013
Page 3 of 5

be readily converted, it would be illegal to sell, possess, or transfer that magazine
in Colorado; if, however, the manufacturer did not intend to design the magazine
to be readily converted, it would be legal to sell, possess, or transfer that same
magazine. Requiring individuals to predict a designer's intent to determine
criminal culpability is unconstitutionally vague under the Colorado Constitution.
The Colorado Supreme Court has established "[w]hen a statute is challenged as
void for vagueness, the essential inquiry is whether the statute describes the
forbidden conduct in terms so vague that persons of common intelligence cannot
readily understand its meaning and application. 1 A person of common
intelligence cannot determine whether a magazine is designed to be readily
converted.

E. Inconsistent Interpretation - A problem closely related to the vagueness issue is
the near certainty of inconsistent interpretations by law enforcement and those
with responsibility to enforce the law and prosecute violations. Some officials
will read the bill literally and make their own determination what magazines are
designed to be readily converted.

II. HB 1224 Bans and Requires Confiscation of Certain Firearms

Regardless of the intent of legislative drafters, HB 1224 makes it illegal to purchase,
inherit, or even possess existing firearms that have an internal ammunition source over 15 rounds
other than .22 caliber or lever action firearms. This includes several popular firearm models,
such as the Taurus 45 bolt action rifle which has an internal magazine capacity of sixteen .45
caliber rounds, and the SKS line of rifles which can have an internal ammunition source of 20
rounds. This category of firearm would be illegal to possess as of July 1, 2013, regardless of
when it was obtained, because HB 1224 only "grandfathers" magazines over 15 rounds and not
firearms that have an internal ammunition source over 15 rounds. If HB 1224 is signed into law,
individuals who possess this type of firearm after July 1, 2013 would be guilty of a criminal
offense.

A. HB 1224 Bans Sale of Certain Firearms. HB 1224 would ban the sale or
transfer of all firearms (except .22's and lever actions) that have an internal
ammunition capacity over 15 rounds. These firearms could not be obtained or
brought into Colorado after July 1, 2013. Unlike similar laws in other states, HB
1224 does not contain an antique or vintage firearm exemption, so all firearms of
this type are prohibited.

1 People v. Gross, 830 P.2d 933, 937 (Colo. 1992).

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March 15, 2013
Page 4 of 5

B. HB 1224 Bans Inheritance of Certain Firearms. HB 1224 would ban the
transfer of all firearms (except .22's and lever actions) that have an internal
ammunition source over 15 rounds. As a result, individuals could not sell or trade
these firearms after July 1, 2013. Individuals will not even be able to transfer
these weapons to other family members as a gift or inheritance. Unlike other state
laws, HB 1224 does not include an inheritance exemption. This means that a
Colorado citizen cannot even pass this type of weapon down to his son or
daughter, even if it is an antique or vintage firearm.

C. HB 1224 Makes Existing Firearms Illegal to Possess. HB 1224 bans all fixed
ammunition sources over 15 rounds. The bill exempts .22 and lever actions that
have fixed ammunition sources over 15 rounds. The bill also grandfathers
existing "magazines" over 15 rounds. However, HB 1224 does not grandfather
firearms that have an internal ammunition source over 15 rounds that are not .22's
or lever action. These firearms would be illegal to posses in the State of Colorado
as of July 1, 2013, if HB 1224 is signed into law regardless of when the firearm
was obtained. It would be a criminal offense to continue to possess these types of
firearms even if an individual owned the firearm before HB 1224's enactment.

III. Implementation and Enforcement Virtually Impossible

In addition to the enforcement and interpretation issue discussed above, there are other
serious flaws that will make HB 1224 virtually impossible to implement and enforce.

A. Date Stamp - The vast majority of firearm magazines do not contain a date
stamp. Manufacturers outside of Colorado that are supplying an international
market will not adjust manufacturing processes to meet Colorado HB 1224's
requirements. The fact that firearm magazines do not contain markings to
demonstrate production or sale dates makes HB 1224 virtually impossible to
enforce for at least two reasons:

1. Grandfathering - HB 1224 "grandfathers" prohibited magazines located
in Colorado before the bill's effective date. Without date stamps on
magazines, it will be impossible to determine which firearm magazines
were located in the State of Colorado before the bill's effective date. In
fact, the National Institute for Justice recently issued a memo that
concluded magazine bans are ineffective if they contain grandfathering
provisions:

"In order to have an impact, large capacity magazine
regulation needs to sharply curtail their availability to

Governor Hickenlooper
March 15, 2013
Page 5 of 5

include restrictions on importation, manufacture, sale,
and possession. An exemption for previously owned
magazines would nearly eliminate any impact. The
program would need to be coupled with an extensive
buyback of existing large capacity magazines. With an
exemption the impact of the restrictions would only be
felt when the magazines degrade or when they no
longer are compatible with guns in circulation. This
would take decades to realize." 2

2. General Availability - Any individual could legally purchase a "Large
Capacity Magazine" in another state, including each of Colorado's
neighboring states, bring the magazine back to Colorado, and there would
be virtually no way for law enforcement to prove that the magazine was
not purchased or transferred before the effective date of HB 1224.

B. Law Enforcement - HB 1224 places impossible enforcement decisions on
Colorado law enforcement. To effectively enforce HB 1224, Colorado law
enforcement would need to be able to determine: 1) whether a magazine is
"designed to be readily converted;" 2) whether a magazine was in existence prior
to the ban; and 3) whether a magazine had been in continuous possession since
the enactment of the ban. This information is not available to law enforcement
because it does not exist, making HB 1224 impossible to enforce.

Based on the facts and analysis set forth above, HB 1224 bans a broader class of firearms
and firearm accessories than the bill sponsors intended. HB 1224, as written, would be one of
the most expansive gun bills implemented in the United States. Based on these facts, along with
the significant legal and enforcement defects, Magpul urges you to veto House Bill 1224.

Sincerely,

Jonathan M. Anderson

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2 Summary of Select Firearm Violence Prevention Strategies, National Institute for Justice, January 4, 2013.